I'm a libertarian lawyer and college professor. I blog on religion, history, constitutional law, government policy, philosophy, sexuality, and the American Founding. Everything is fair game though. Over the years, I've been involved in numerous group blogs that come and go. This blog archives almost everything I write.
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Tuesday, November 02, 2004

Rights: A doctrinal misunderstanding that has been politically useful for religious conservatives:

Liberal democracy is a “rights based” system of government. The United States, the first true and most prominent of the liberal democracies, was given birth to by the Declaration of Independence which states that the purpose of (all) government is to secure the “rights” of its citizens.

Understanding that is elementary. Understanding where rights come from and what rights are to be secured is rather a bit more confusing and given to doctrinal misunderstanding. Nowhere is this doctrinal confusion more apparent than in the sentiments of the religious right, especially when they claim that “rights” come from their Biblical God and try to determine from there, which rights are properly recognized.

Let's refocus on homosexuality and look at it from God's perspective. If we are honest, it is impossible to view homosexuality and come away with any other opinion than the truth that homosexuality is sin. God's Spirit, through the Apostle, says this about homosexuality:
"For this reason God gave them up to vile passions. For even their women exchanged the natural use for what is against nature. (27) Likewise also the men, leaving the natural use of the woman, burned in their lust for one another, men with men committing what is shameful, and receiving in themselves the penalty of their error which was due. (28) And even as they did not like to retain God in their knowledge, God gave them over to a debased mind, to do those things which are not fitting;" NKJV, Romans 1:26-28

From God's moral point of view, the lusting of one man after another man or the lusting of one woman after another woman are passions of dishonor. These passions, these particular lusts, dishonor the moral quality of the human soul because they defy the "the natural use" and they are at the heart of the matter an act "against nature"-- as the Scripture says. Keep in mind that this is the same Nature that is referenced in the Declaration of Independence in the famous phrase "the Laws of Nature and Nature's God". Therefore, because the God who wrote these scriptures is also Nature's God, when you act against nature you are doing so because you are acting against God. Homosexuality, the lust and the act, stands in open defiance challenging the very moral purpose and design of nature and Nature's God.

If I can sum up Mabon’s argument it would be as follows. And let me point out, I am using Mabon’s sentiment as an anecdote for the general mindset of the religious right. This isn’t just what he believes. This is what they believe. For instance, I heard WorldNetDaily’s Joseph Farah, on his radio show make the same argument as to why George Bush was wrong to come out in favor of civil unions: To paraphrase him—“Rights come from God—God calls this an abomination! How can Bush, as a believer, support this?” I have also witnessed D. James Kennedy, Roy Moore, and Randall Terry make this exact same argument:

1) Rights come from God, 2) God has laid out what is and is not proper in the Bible, 3) If the Bible forbids something, and if rights come from God, then what is Biblically improper cannot be a “right.”

This sentiment, of course, has absolutely nothing to do with a proper understanding of the political philosophy of the Declaration. Let me clear up the confusion:

1) The Rights that Government Grants in its Positive Law—Political and Civil Rights—don’t come from God:

According to our founding philosophy, political and civil rights do not come from God; they come entirely from government. Our natural “unalienable” rights come from God. A good political system is one that secures, in the form of political and civil rights, those God-given natural rights. (Note: some of my new readers may be atheists or agnostics, or may, for whatever reason, object to the notion that rights come from God. My purpose is not to demonstrate that rights in actuality, come from God—who may or may not exist—but rather to examine the religious right’s claim, in lieu of the Lockean—Jeffersonian—Madisonian natural rights theory that founds this nation. And such a theory did hold that natural rights come from our “Creator.”)

2) Government is Free to grant “Positive Rights” that are not God-Given Natural Rights:

This distinction is not trivial. After government secures our God-given natural rights, such a government would be free to grant even greater political and civil rights that have nothing to do with natural rights, as long as those other non-natural rights, do not interfere with the natural rights that governments are obligated to recognize.

For instance, look at everything that government grants that goes above and beyond certain basic equal rights of citizenship and basic rights of liberty that government is obligated to protect: The right to a Social Security Check, to Medicare, to a public education, to a minimum wage, to a government pension….? What do these things have to do with something that God mandated in the Bible, or certain “self-evident rights” grounded in nature? Nothing. They are political rights that government is free to grant or not to grant unless it could be argued that granting such non-natural political rights interferes with the natural rights of the citizens, under which case, government could not do such (which, some or all of these things, indeed may do).

So even if Civil Unions for Gays, for example, did not qualify as a God-given natural right, they still may nonetheless qualify as a wholly government granted positive right—which government would be free to or not to recognize, provided that, government granting civil unions doesn’t wrongly interfere with the inherent natural rights of the citizens.

3) Nature’s God in the Declaration of Independence is not readily identifiable as the God of the Bible.

This is perhaps the weakest aspect of Mabon’s/the religious right's claim. Here’s the big issue that they have not been able to honestly confront: That God grants us unalienable natural rights is a doctrine that is nowhere to be found within the Bible. Such a “Truth” was “discovered” using wholly unassisted reason. So when exactly was this notion of “rights” “discovered” or “invented” (whichever you believe)? As Allan Bloom writes, “Hobbes initiated the notion of rights, and it was given its greatest respectability by Locke." Bloom, The Closing of the American Mind, p. 165.

More importantly, it is doubtful that the most important expositors of the “God grants us rights” theory were referring to the Biblical God, but rather a deistic, unorthodox, God of Nature (after all, they referred to him as “nature’s God,” not in orthodox, Judeo-Christian terms). So when Lon Mabon writes, “Therefore, because the God who wrote these scriptures is also Nature's God,” he is making a huge leap and arguably, a mistake in doctrine. Walter Berns, a social conservative whose scholarly credentials are beyond reproach, writes this nature’s God:

[T]he God invoked [in the Declaration of Independence] is “Nature’s God,” not, or arguably not, the God of the Bible, not the God whom, today, 43 percent of Americans…claim regularly to worship on the Sabbath. Nature’s God issues no commands, no one can fall from his grace, and, therefore, no one has reason to pray to him asking for his forgiveness; he makes no promises. On the contrary, he endowed us with “certain unalienable Rights,” then left us alone, and with the knowledge, or at least the confidence, that he will never interfere in our affairs. Moreover, he is not a jealous God; he allows us—in fact, he endows us with the right—to worship other gods or even no god at all. This right can best be secured—Jefferson, Madison, and the others insisted it could only be secured—under secular auspices, under a government that takes no stand on faith.

This is a pretty unorthodox understanding of God, no? So when Howard Dean argued that his understanding of God was that He created homosexuals as homosexuals and accepts them for who they are, the religious right could argue that such an understanding of God is not Biblical (orthodox); but arguably neither is “nature’s God” as understood by the Declaration’s author, and by other very prominent founders. As I have written before, at least four out of the five men on the drafting committee of the Declaration of Independence rejected the notion of the Trinity, which is a paramount feature of orthodox Christianity.

Now, there were plenty of orthodox Christians around at the time of the founding, most of whom probably, like the evangelicals of today, supported the Declaration of Independence. And they, in supporting the Declaration, probably didn’t think they were paying obeisance to some non-Biblical God. As Berns writes:

[U]nlike Jefferson, Madison, and others, the majority of ordinary Americans at the time…probably…[took] it for granted that nature’s God, who endowed them with unalienable rights, including liberty of conscience, was the providential God of the Bible. However wrong as a matter of doctrine—where does the Bible speak of unalienable or natural rights, or of the liberty to worship or not to worship as one pleases?—this made good political sense in America.

Berns, Making Patriots, pp. 42-43.

As this passage implies, the potential doctrinal conflict between the duty demanding Biblical God and the arguably non-Biblical, rights granting “nature’s God” cannot be ignored. Berns’s point on “liberty of conscience” is paramount to understanding the dilemma of orthodox Christians who would argue that their God grants rights. Our natural and constitutional religious rights derive from the rights of conscience, which, according to Madison and Jefferson, are the most vital, the most radically unalienable rights. In Madison’s words, all men retain an "equal title to the free exercise of Religion according to the dictates of Conscience." Jefferson held that the God given rights of conscience extend to men who worship no God or twenty Gods, which is one of the sources of Berns’s claim that nature’s God “endows us with the right—to worship other gods or even no god at all.”

Yet, is this the God of the Bible who grants us the rights to worship no God or twenty Gods? The “Jealous” Biblical God seems to directly contradict this right—he expressly forbids the worshipping of false gods—in the First Commandment, the most basics of all basics. Elsewhere in the Old Testament, God commands that those who would proselytize others to worship “false Gods” are to be stoned to death.

I suppose that some on the religious right, aware of this potential inconsistency, will simply deny that non-Christian worshippers have any Constitutional religious rights (a fairly extreme position, even for the religious right—but Christian Reconstructionists, like Gary North, being truly consistent, would, in his first best Biblical world, have non-Christian worshippers executed for public proselytizing). However, it has become increasingly common for fundamentalists to claim that the reason why non-Christians have a right to worship in this nation is because this is a Christian nation, because their Christian God gives non-Christians the right not to worship Him. For instance, as Cathy Young reports, “On Hannity & Colmes, the Rev. Jerry Falwell, the prominent evangelical leader, asserted that it is precisely because America is a Christian nation that Jewish, Muslim, Hindu, or atheist Americans enjoy the freedom they do.” I have heard Roy Moore ditto that sentiment. But then, both of these men will turn around and claim that the Ten Commandments are unalterable moral law, of which all other law is subservient. Indeed, religious right scholars have proudly proclaimed that the entire Ten Commandments were part & parcel of the civil law of all but one of the colonies of this nation (not realizing that such practice contradicted the unalienable rights of conscience implicit within the Declaration, which was written many years after our puritanical colonial systems were established).

I haven’t seen anyone on the religious right even attempt to confront this contradiction. And if we accept that God grants rights to do things which He expressly forbids in the Bible, like worship false gods, then I suppose we could also accept that God grants gays the right to pursue their relationships.